Bush v. Gore Rears Its Head (Part III): Souter's Resignation as an Invitation to Balance a Politicized Court

Any vacancy on the Supreme Court, regardless of the historical context, presents questions of monumental significance. With life tenure and the power to interpret the Constitution as requiring whatever they collectively see fit, the Court's Justices are among our nation's most powerful figures.

But as observers examine potential nominees to replace the retiring Justice Souter, most have overlooked the extraordinary importance of this particular nomination. As President Obama's first opportunity to help shape the Court, his choice will determine whether the nation's jurisprudence will follow -- or instead be freed from -- the politicized grip of conservative judicial insurgents.

Parts I (The Politicization of Voting Rights) and II (The Triumph of Politics Over Law) of this series reviewed the Roberts Court's recent cases affecting reproductive rights, the right to equal education, workplace discrimination, environmental protection, punitive damages, fraud liability, access to justice, and more. Across all of these judicial doctrines, what once passed for law has been usurped by an institutionally aggressive Supreme Court wielding a political agenda.

In this context, the timing of Souter's resignation appears to reflect not only a brilliant man's pursuit of a simpler life, but also an invitation to the Obama Administration to boldly reshape the Court and restore its eroded legitimacy as a guardian of neutral legal principles. At a minimum, the Administration should choose a nominee who brings vision, depth, and assertiveness to the Court, "one who sets agendas, forges consensus and has a long-term vision about how to shape the law."

This article examines the timing and context of Souter's retirement, suggests criteria for his replacement, and identifies Stanford law professor Pamela Karlan and Michigan Governor Jennifer Granholm as the potential nominees most suited to this historical moment.

Some who overlook conservative policy-making from the bench have characterized the Court as "balanced" under the leadership of Chief Judge Roberts. For instance, former Rehnquist clerk R. Ted Cruz suggests that "this is very much an almost exquisitely balanced court, with Justice Kennedy remaining at the fulcrum of most -- if not practically all -- close decisions."

But a split between competing blocks of nearly equal voting strength does not establish the Court's "balance," especially since those blocks are skewed to the right. Reacting to the mid-20th century jurisprudence that expanded individual rights & liberties, Presidents Nixon and Reagan each shifted the Court sharply, transforming the institution over the past 50 years.

Today, four Justices practice a moderate jurisprudence lacking overarching principles, such as the fairness or opportunity norms that animated decisions like Brown v. Board, Miranda v. Arizona, and Roe v. Wade. The five Justices in today's majority actively promote a conservative political agenda, and casually discard long established precedents.

Meanwhile, the constitutional tradition that proudly defined the Court in the mid-20th century has been entirely extinguished. Justice Stevens noted as much in the Parents Involved decision that in 2007 gutted Brown by striking down voluntary busing programs that school districts initiated to prevent racial isolation in schools. As he wrote then in dissent, "no Member of the Court that I joined in 1975 would have agreed with today's decision." Similarly, as Stanford law professor Pamela Karlan recently noted, Justice Souter "was not a true liberal, and he would not have been a liberal on the court of the 1960s or 1970s. But he believed in privacy and civil rights and precedents. That made him a liberal on the court today."

...Raising Tensions on the Bench

As the Court slid to the right over the past generation, the depth of the Court's division also deepened and may now be unprecedented. After Roberts and Alito were appointed in 2006, the right-wing majority undermined individual rights & liberties and defended corporations even more aggressively than it had under Rehnquist. More experienced Justices reacted with concern, indicated through the frequency, assertiveness and tone of their dissenting opinions, as well as the previously rare practice of reading them from the bench.

In the 2008 Heller case, conservatives conjured a novel reading of the 2nd Amendment never before accepted in our nation's 230-year history. Justices Stevens and Scalia traded sharp barbs in their competing opinions: Scalia likened Stevens to "a mad hatter" and accused him of "flatly misread[ing] the historical record," while Stevens argued that Scalia's approach was "feeble," as well as "strained and unpersuasive," and "fundamentally failed to grasp the point" of rudimentary analytical principles.

Justice Breyer read his dissent in Parents Involved from the bench for nearly half an hour, presenting the functional effect of the majority's 2007 decision as betraying the "promise of Brown." The same year, Justice Ginsburg followed suit in two cases that restricted women's rights: Carhart, which "circumruled" Roe by forcing women to carry pregnancies to term even when doing so could threaten their health; and Ledbetter, which limited relief for women subjected to pay discrimination in the workplace. Challenging the biased and pejorative language pervading Justice Kennedy's controversial analysis in Carhart, Justice Ginsburg observed that "[t]he Court's hostility to the right Roe...secured is not concealed."

Justice Ginsburg's forcefulness, according to Marcia Greenberger, was "a signal of how alarming she found the majority decision....[H]ow unusual it was for her to [read a dissent from the bench], let alone twice in such a short period of time....She sounded the alarm, but all in America need to hear it."

Justice Souter's resignation may represent a second source now sounding the same alarm. He was reportedly disillusioned after Bush v. Gore, and "visibly angry" during an oral argument last month in a case that could potentially witness the most significant portions of the Voting Rights Act being struck down as unconstitutional. The departing Justice may have resigned for the sake of institutional fidelity, to make space for the kind of jurist able to resist the Court's conservative majority.

Aspiring Towards an Assertive Appointment

The resignation of David Souter will do little to reduce tensions between the Court's judicial moderates and its conservative majority. But Souter's replacement could have an enormous impact on the Court in other ways -- if the nominee holds a strong vision of the law and the tools to express it in compelling terms.

A nominee in Souter's moderate mold would disappear quickly into the footnotes of history. Casting the same votes as would Souter, without mounting a meaningful challenge to the conservative majority's jurisprudence, he or she also would fail to capture the interest of civil society or inspire lay observers to care about the legal system.

In contrast, an assertive progressive visionary could transform the Court over time. First, a Justice able to articulate a compelling overarching vision of the law -- which the moderates lack -- could lay a foundation in dissenting and concurring opinions for future rulings to cite. Moreover, someone able to translate the arcane world of legal theory into accessible, memorable, and ideally even entertaining opinions could engage civil society and lay observers in the Court's otherwise inaccessible work.

Translating the law in this way has transformed the Court before: Justice Scalia has done so adeptly and is an apt model to emulate. When he first joined the Court in 1986, his arguments were often viewed as extreme, untenable expressions of conservative judicial fancy. But Scalia's strident and often witty opinions achieved several ends.

First, Scalia built a textual trail in his dissenting opinions, which later Justices who shared his vision were able to cite in support of their own arguments. Second, as a leading light of the conservative movement, he captured the attention of lay conservative activists who, in various ways, helped promote his vision of the law.

Some called their Senators demanding support for conservative circuit court nominees, who in turn either issued rulings that Scalia could uphold on appeal or, in some cases, ultimately joined him on the bench. Other activists reinforced Scalia's legal theories in the academy, slowly shifting the legal culture through scholarship and lectures. Some promoted legislation in their towns and states to force contested social questions into the courts, leveraging the presence of their judicial allies on the bench. And the direct actionistas of the political right took to the streets, for instance, by parading at public gatherings with gruesome images of abortions to build opposition to fundamental reproductive rights.

President Obama's nominee will either stride onto the Supreme Court and begin laying a foundation for the recovery of law as a neutral institution, or capitulate to the right-wing judicial revolution of the last generation.

Judges vs. Justices

The ideal nominee to replace Souter would, like Scalia (before his 1982 appointment to the D.C. Circuit), come from the legal academy. Roberts has noted with praise that, "for the first time in its history, every member of the Court was a federal court of appeals judge before joining the Court...." But the lack of experiential diversity on the bench is not worthy of praise.

Judges today are hardly known for the "empathy" of which President Obama has spoken highly. Observers have noted the President's "disdain for formalism, the idea...that law can be decided independent of the political and social context in which it is applied." A competing functionalist legal paradigm, focused on the impact of rulings on the parties and interests before the Court, has a long and proud history in the law but has fallen out of favor over the past generation. A Justice whose philosophy remains untainted by years of applying laws based on an outmoded formalist model would be best positioned to articulate a new alternative, even one building on well-established historical roots.

In addition, many of our nation's brightest legal lights evaded lower courts on their path to the Court. Justices Earl Warren and Sandra Day O'Connor both joined the bench only after successful political careers. While politicians are not necessarily known for empathy, either, they at least hear regularly from real people about their concerns. Legal academics -- especially those who actively champion social causes -- share many of those same concerns themselves, and also interact constantly with young people.

The President, of course, was an engaged legal academic before embarking on his career in politics, and as a hands-on participant in the selection process for Souter's replacement, can presumably relate to potential nominees from either arena. In contrast, appellate judges are removed from society, unfamiliar with daily life on the ground, and therefore especially unqualified to resolve our nation's most pressing disputes.

The Ideal Nominee

At this point, the President's preferences among Souter's potential replacements are inscrutable. Without statements indicating his perspective of the nomination, few indicators are more relevant than President Obama's own assertiveness on other issues. Unfortunately, that measure offers cause for concern.

As an example, whether the President remains committed to restoring the Rule of Law has grown unclear. His Administration continues to maintain the secrecy of FBI policies that mandate racial & religious profiling. And the President remains reluctant to hold his predecessors accountable for torture and war crimes. Each decision suggests a hesitance to wield the President's formidable political capital.

If the Administration proceeds with equal caution when choosing a nominee, it will decide upon a moderate, allowing conservatives to continue to dominate the Court. But despite the Administration's cautiousness in other contexts, some hope remains that President Obama cares more deeply about the Court he studied for years as a student and scholar.

If judicial independence and impartiality matter to the President, he should defend the institution's integrity by nominating an assertive visionary from outside the federal judiciary to replace Justice Souter. Presuming that the nominee will be a woman -- which is necessary but still quite insufficient to render the Court representative of either the population or the legal profession -- two particular candidates stand out from the rest.

Pamela Karlan is a legal academic at Stanford Law School, the nation's leading authority on voting rights (an area of legal doctrine in which the Court's jurisprudence has grown especially indefensible), a respected advocate before the Court, and a bona fide lion of the legal left. Karlan's writing is extraordinary, her wit is unparalleled, and having just authored a book exploring "constitutional fidelity" as an interpretive model, she is among the nation's few legal experts wielding the vision to assertively challenge the Court's conservative majority.

Should the President prefer a nominee with political experience, Governor Jennifer Granholm of Michigan is a less ambitious alternative. She served as a federal prosecutor; chief legal officer for a major county; and Michigan's first female Attorney General. As Governor since 2002, Granholm has led the state in exemplary fashion: the Pew Center on the States' Government Performance Project recognized that her leadership "demonstrate[s] that it is possible to manage well even in the most difficult of times." Whether she shares Karlan's legal brilliance, however, is unknown.

With Democrats holding a filibuster-proof majority in the Senate, few Presidents will hold as strong a hand to reshape the Court's future course as does Obama today. The choice among nominees will thus carry a lasting impact in constructing Obama's legacy -- which could either boldly reverse the painful and sad course of the Bush years, or merely chart a thoughtful alternative while preserving its predecessor's worst elements.

Karlan and, to a lesser extent, Granholm would be bold nominees, worthy of the first Supreme Court nomination by a President who himself has broken so much new ground already.